Levels Of Trademark Protection

Trademark Protection Blog PostA trademark is a word, symbol or phrase used to identify a company or individual’s products or services and to distinguish them from the products or services of another. There are different levels of trademark protection, and rights can be acquired in one of three ways: (1) common law trademark rights, which require that the user be the first to use the mark in commerce; (2) state trademark rights, which require registration with a specific state; and (3) federal trademark rights, which require registration with the U.S. Patent & Trademark Office.

Common Law Trademark Rights

This is the lowest level of protection and simply requires the use of your trademark in commerce. Once a business uses a trademark in connection with its goods or services, the business acquires priority to use that mark in connection with those specific goods and services assuming no other trademark owner has superior rights. However, the priority to use that mark is limited to the geographic area the mark is actually used in and a limited zone of expansion. This right would provide the business the right to stop any infringing use of the mark within the business’ geographic area, but would not give the business the right to stop someone from using the trademark anywhere else and also would not prevent someone else from filing a federal registration for that same mark, effectively limiting the first users’ expansion into any new areas.

State Trademark Rights

The second way to obtain protection is to file for a trademark registration within the state in which the business is using the mark. This registration would provide protection only within the state of registration assuming no other trademark owner has superior rights. This registration would not limit another business’ ability to obtain a federal registration, again, effectively limiting the ability to expand into new markets outside of the state of registration.

Federal Trademark Rights

This is the highest level of protection for trademarks in the United States. These rights require registration with the U.S. Patent & Trademark Office. Once registered, the business would have the right to use the mark nationwide, except to the extent that the mark is utilized by a third party with previously established rights. In addition to the right to use the mark nationwide, federal registration provides several other benefits, including: (i) the right to bring an infringement lawsuit in federal court; (ii) the mark becoming “incontestable” after five years of use after registration; and (iii) potential recovery of treble damages, attorneys’ fees and other remedies for infringement.

There is no way to fully protect a business’ trademark and its future expansion without obtaining a federal trademark registration. Businesses that rely on common law rights often find that the expansion into other geographic areas is limited by later in time trademark use and/or registrations. Registering your trademark federally ensures that all the costs and expense of building a business’ trademark is not wasted and helps you to build a valuable asset for your business.

What Is The Nevada Domestic Partnership Act And What Do I Need To Do As A Business Owner?

Nevada Domestic PartnershipEffective October 1, 2009 (It’s coming up fast!), the State of Nevada will recognize a new civil contract between unmarried individuals who meet the requirements of the Nevada Domestic Partnership Act and who properly file registration documents with the Nevada Secretary of State. Domestic partners may be the same sex or opposite sex. The new law grants registered domestic partners the same rights, protections, benefits, responsibilities, obligations and duties as those granted to married couples under the law whether imposed by statute, regulation, rule, government policy, common law, or any other source of law. These rights and responsibilities extended to registered domestic partners include those provided under testamentary/probate law, employment and discrimination law, and all family law statutes including community property, spousal and child support, and adoption. Although distinct from marriage under Nevada’s Constitution, domestic partners should, in most cases, be treated as the legal equivalent of spouses with the exception listed below.

OK, Fine! So what are you supposed to do???

To comply with the Nevada Domestic Partnership Act, you should review your policies and procedures to determine if revisions need to be made to account for registered domestic partners. Generally, any reference an employee’s spouse in your employee handbook or policies should be revised to refer to “spouse and/or domestic partner.” In doing these revisions, however, you should be aware that certain benefits for spouses mandated by federal law, such as COBRA continuation health coverage and Family and Medical Leave Act leave, may not be available to domestic partners.

Also, think about your company’s forms. If you have a new hire packet that includes information about a spouse, change that to say “Spouse/Domestic Partner.”

YOU HAVE A CHOICE REGARDING HEALTH CARE BENEFITS!

The major exception to the rights extended to registered domestic partners is required employer health care benefits. Public and private employers in Nevada are not required to provide health care benefits under their applicable plan to registered domestic partners, but they may choose to do so. If you wish to extend insurance benefits to domestic partners, we suggest that you call your insurance provider to discuss whether you can and/or will offer benefits to domestic partners of your employees. Under this new law, employers who offer benefits to their employees and spouses will need to carefully evaluate each benefit and determine if they are required, or if they elect, to include domestic partners. Please keep in mind that under federal law, neither same-sex spouses nor domestic partners are generally recognized as spouses for whom favorable tax benefits apply. This would usually mean that certain tax-favored benefits (like pretax cafeteria plan or flexible spending account benefits) cannot be provided to employees who add domestic partners to group health plan coverage.

The conditions that must be met to register a domestic partnership can be found in Senate Bill 283 in the 2009 session information on the Nevada Legislature’s website: www.leg.state.nv.us. For more information on how to register a domestic partnership with the Nevada Secretary of State, go to: www.nvsos.gov/licensing/securities/domesticpartnership.asp.

What Is Parental Leave And Do I Have To Offer It To My Employees?

Employee LawEffective August 15, 2009 in the State of Nevada, if you are an employer with fifty (50) or more employees (for each working day in each of twenty (20) or more calendar weeks in the current calendar year), you must comply with the new parental leave for school activities law. This law requires you to provide an employee who is a parent, guardian, or custodian of a child enrolled in a public or private school four (4) hours of unpaid leave per school year per child to:

  • Attend parent-teacher conferences;
  • Attend school-related activities during regular school hours;
  • Volunteer or otherwise be involved at the school in which the child is enrolled during regular school hours; and
  • Attend school-sponsored events.

You may place the following restrictions on an employee’s use of the parental leave:

  • The leave must be taken in increments of at least one (1) hour;
  • The leave must be taken at a time mutually agreeable to both the employer and the employee;
  • The employer may require the employee to request the leave in writing at least five (5) school days in advance of the leave; and
  • The employer may require an employee to provide documentation indicating that the employee attended or participated in the school-related function for which the leave was granted.

What changes should I make to my employee handbook?

You should prepare and distribute a new (or updated) policy which sets forth who is eligible for the leave, the amount of leave, the activities for which leave will be granted, and the procedure an employee must follow to request the leave. The policy should also contain a provision indicating that the company will not terminate, demote, suspend or otherwise discriminate against an employee, or threaten to take such action against an employee, who utilizes the leave benefits provided by the new law.

Do I need to do training?

The employer should also train their supervisors and managers regarding the provisions of the new law to avoid discrimination against employees who take parental leave. There are provisions in the law itself that make it an unlawful employment practice for an employer to terminate, demote, suspend, discriminate against, or to otherwise threaten to assert such action against an employee who: (1) takes the parental leave granted by the statute; (2) attends a conference requested by an administrator of the child’s school; or (3) is notified during work hours by a school employee of an emergency regarding the employee’s child.

What happens if I don’t comply?

The provisions of the new statute provide specific remedies for a violation. If you terminate, demote, suspend, discriminate against, or threaten to take such action against an employee in violation of the new law, you may be guilty of a misdemeanor. There is a procedure for an aggrieved employee to file a complaint with the Labor Commissioner. You then have an affirmative duty to provide the employee “who is discharged from employment or who is demoted, suspended or otherwise discriminated against with all the forms necessary” to file a complaint with the Labor Commissioner. If the Labor Commissioner finds in favor of the employee, the Labor Commissioner may award, in addition to any remedies provided in NRS Chapters 607 and 608, the following: (1) lost wages and benefits as a result of the violation; (2) an order reinstating the employee to their position without loss of seniority, pay or benefits; and (3) damages in the amount of the lost wages and benefits.